Law Technology Today From the ABA Legal Technology Resource Center
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Some have used the old joke about the check being in the mail to equate the biggest lie on the internet as agreeing to the terms and conditions. We are all guilty of scrolling quickly to the bottom of the page, searching for the place to click on agree in order to move on with our purchase. A 2017 Deloitte survey reported that a whopping 91% of the population does not read anything before agreeing to the legal terms for use of mobile applications and websites, including social media sites. Further, if you look at people ages 18 to 34, almost everyone accepts the terms without reading, with the rate climbing to 97%.
When you check “Agree”, what does it really mean? The answer is within those lengthy legal terms and conditions and, unfortunately, without reading, you cannot be at all sure what you are signing for with that one click. Not only do people skip reading the terms and conditions because of time pressure, but the lack of plain English and overuse of legal jargon puts the average person off from an attempt.
Privacy
A hot topic is the privacy of your data, which ranges from basic information like an email address or a mobile phone number all the way to personally identifiable information (PII). The latter includes social security information and credit card data. The same Deloitte Survey cites that people are concerned about privacy with respect to the internet of things, particularly smart home technology. However, again almost everyone will agree to terms and conditions for these devices without reading about any impact on privacy. And then when the cold calls and spam emails start, everyone forgets that they visited that site and agreed to terms without a second glance.
What’s In, What’s Out?
As an example, the Apple Media Services Terms & Conditions are a full 12 pages long and do not include the privacy policy which is totally separate. However, those privacy terms are actually agreed upon when the user accepts the overall terms. On page two, there is a line that states “Your use of our Services is subject to Apple’s Privacy Policy, which is available at https://www.apple.com/legal/privacy/.”
Companies place links to external policies in the terms and conditions and then because it’s all included in the overall document, you are actually agreeing to much more than meets the eye if you do take the time to scroll through.
Copyright and Trademarks
Intellectual property is almost always included in the terms and filled with technical terms and infringers risk hefty fines. The average user does not understand the difference between a copyright and trademark and would still be confused by the wording around intellectual property prohibitions and protections in these terms. Yet, when you click on the accept button, these complicated provisions now apply to your use of the website.
Newsletters
The spam calls have spilled over into our inboxes as unwanted newsletters and other marketing materials constantly ping us. You can take the time to unsubscribe by scrolling down to the very bottom to the required link for every email. Side note, make sure that your marketing emails give the user the ability to opt out. Many think that they never signed up for that particular newsletter or update but likely when you were joining the website, you did not read the fine print and agreed to the terms that included receiving regular emails.
On a lighter note, two university professors, Jonathan Obar and Anne Oeldorf-Hirsch, put together a fake social media site, NameDrop and ran an experiment to see how many of the 543 participants ignored the privacy policy and/or the terms of service. Not surprising, 74% of those participants jumped to use the quick join option and did not read the privacy policy. Of those that did not use quick join, an average of 73 seconds was spent reading the privacy policy. Based on average reading speed, this privacy information should have taken about 29 to 32 minutes to read. Even worse was the terms of service, where everyone had the opportunity to read and should have taken about 15 to 17 minutes on average. Instead, people spent exactly 51 seconds. Only 3% of people declined the privacy policy and 7% rejected the terms of service.
Interestingly enough, NameDrop terms of service had some buried gems in their terms about sharing people’s data with the NSA and their employers and giving up a first-born child for SNS access. More proof that no one reads!
In summary, other than encouraging people to read the terms and conditions, not much can be changed from a human behavior point of view. However, companies can pare back the length of these agreements and more importantly, write in plain English. The legal speak prevalent in many policies and terms are not customer-friendly and pointing to the fine print on a website as a justification will not serve your brand well. Instead, creating a brief summary or frequently asked questions, particularly with respect to privacy and cybersecurity could provide that needed connection with the user.
